Punishing Threats, Imprisoning Millions

Abstract:

This thesis seeks to determine whether the federal criminal law has been used increasingly in the past several decades to punish conduct that poses a general threat to society, rather than conduct that causes a concrete harm to a particular victim. It situates this question within a broader discussion of criminal punishment in the United States, including rising incarceration rates, the theoretical justifications for punishment, and important legal limitations on its exercise.

To determine whether the federal criminal law has been used increasingly to punish threats, this thesis charts the enforcement of twenty main categories of federal crimes over the past forty years. It gathers and organizes data on criminal case filings published yearly by the U.S. Department of Justice and the Administrative Office of the U.S. Courts. After calculating the trend of enforcement for each crime, it groups the twenty crimes into three categories based on whether the prohibited conduct constitutes a concrete harm versus a general threat of harm.

Analyzing the results, the thesis concludes that there has been a strong trend over the past two decades to use the federal criminal law to target conduct which threatens to harm society, rather than conduct that does concrete harm to an identifiable victim. It argues that this trend is problematic for several reasons: it signifies that federal criminal law will be used to further exacerbate already escalated levels of criminal punishment in the nation; the use of criminal law to target conduct which threatens society is weakly justified theoretically; and using the criminal law to target conduct which threatens society weakens important safeguards in the law designed to constrain the use of criminal punishment.